specially concurring:
I specially concur with the majority decision because I believe there has been a denial of procedural due process for the mother in this case. On appeal, respondent mother argues the circuit court violated her procedural due process rights by denying her the opportunity to be examined by an impartial psychiatric expert prior to the neglect and dependency hearings. I agree.
There is precedent in the case law for the court to order the State to bear the cost of providing an expert for the purpose of protecting the mother’s procedural due process rights when the State’s expert is biased. Our supreme court has recognized that the appointment of an expert, at the State’s expense, is necessary in certain situations. A person attempting to show his or her own recovery from sexual dangerousness may have a psychiatric expert appointed when it is clear the State’s experts will not be providing an unbiased opinion of the mental status of the sexually dangerous person. People v. Burns, 209 Ill. 2d 551, 574 (2004). An analogy may be drawn in those situations involving the recovery petitions of sexually dangerous persons.
In this case, the State relied upon the testimony of Terri Kopeny, mother’s State guardian, as its sole witness during the adjudicatory hearing. However, the appointed State guardian ignored the mother’s wishes to undergo a parenting evaluation and refused to consent to a parenting capacity assessment requested by the minor’s caseworker, Ms. Keith, from Kid’s Hope United. The guardian’s bias in favor of the State’s position is very evident from the record. The State guardian formulated her own determination that the mother was unfit and halted the flow of neutral information that may have assisted the court. The State guardian’s refusal to cooperate prevented mother from presenting a defense to the State’s allegations of neglect and dependency. In my opinion, a neutral expert is the key to fundamental fairness and due process in this unique case.
I have serious concerns that the guardian did not possess the authority to refuse permission to consent to medical or psychological care and may have acted beyond the scope of her authority as guardian of the estate only. The letters of office issued to the Office of State Guardian, reviewed by the circuit court in camera, are captioned “Plenary Guardian of the Estate of A Disabled Person.”
It is feasible, based on the record, the Office of State Guardian only controlled the mother’s financial resources as payee for her Social Security benefits. The lack of clarity on this issue permeates every level of the circuit court’s analysis. A clear determination of the scope of guardianship should be a primary concern after remand.
The requested evaluation should be completed at the State’s expense and the mother’s consent to those procedures should be validated.
For the foregoing reasons, I specially concur.